Dog groomer’s defamation claim dismissed after failing the new ‘serious harm’ test under the amended NSW Defamation Act.
In issue
- On 1 July 2021, the Defamation Act 2005 (NSW) was amended by the introduction of section 10A. This new provision means that it is now 'an element of a cause of action for defamation that the publication of defamatory matter about a person has caused or is likely to cause, serious harm to the reputation of the person'.
- Subsection 10A(5) of the new provision allows a party to apply to the Court 'as soon as practicable' for a hearing as to whether the serious harm element has been satisfied. The effect is that if a plaintiff cannot establish that they have suffered serious harm, that is the end of the proceedings.
- This decision was the first time that an application for determination under section 10A has resulted in a hearing. Judge Gibson’s finding that there was no serious harm suffered by the plaintiff resulted in the dismissal of the proceedings.
- The decision proves that section 10A – which was brought in to address concerns about the rise of trivial defamation claims where the costs of litigation far outweighed the redress sought – does have teeth.
The background
The publication at the centre of these proceedings was a series of Facebook Messenger messages sent by Ms Kim Perkiss, an employee of a dog grooming salon, Perky Pooches to Ms Sarah McPherson, the owner of a doggy day care, Albion Bark Lodge.
Those Facebook Messenger messages concerned the plaintiff to these proceedings, Ms Katie Zimmermann. Ms Zimmermann was a former employee of Perky Pooches who left and found work with Ms McPherson at Albion Bark.
Ms Perkiss, who in evidence admitted having 'a few wines' at the time, sent messages to Ms Zimmermann’s new employer, Ms McPherson stating that:
- '[Ms Zimmermann] resigned due to organising the theft of company possessions'
- 'You should check references'
- 'She went on stress leave due to not coping with being caught taking items from the business'
- 'We could have had the police involved'
- 'About $1000 worth of scissors taken'
- 'She denied all 8 cameras don’t lie'
Ms Zimmermann did not in fact steal any scissors, a fact that had been acknowledged by the owner of Perky Pooches’ (who happened to be Ms Perkiss’s daughter).
The decision at trial
Ms McPherson’s evidence was critical to Judge Gibson’s finding that there was no serious harm suffered by Ms Zimmermann.
Her Honour found that while Ms McPherson had anger and suspicion over the messages, that anger was not directed to Ms Zimmermann but rather her former employer, whom Ms McPherson suspected of lashing out because they had lost a valuable employee in Ms Zimmermann.
Her Honour found that Ms Zimmermann had not suffered any harm in Ms McPherson’s eyes and accordingly had not satisfied the serious harm element of section 10A. The proceedings were subsequently dismissed.
Implications for you
Though it is early days, section 10A seems to be serving the purpose for which it was introduced.
Insurers of defendants to such ‘backyard’ claims will no doubt welcome the introduction of the serious harm test and will seek to avail themselves of a section 10A hearing at the earliest opportunity.
It remains to be seen whether section 10A will serve to turn back the tide of plaintiffs bringing such backyard claims in the first place.
